Citation Nr: 0002645
Decision Date: 02/02/00 Archive Date: 02/10/00
DOCKET NO. 95-35 139 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to service connection for joint aches due to
an undiagnosed illness.
2. Entitlement to service connection for loss of muscle
control due to an undiagnosed illness.
3. Entitlement to service connection for a skin rash due to
an undiagnosed illness.
4. Entitlement to service connection for headaches due to an
undiagnosed illness.
5. Entitlement to service connection for memory loss due to
an undiagnosed illness.
6. Entitlement to service connection for fatigue due to an
undiagnosed illness.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Ralph G. Stiehm, Associate Counsel
INTRODUCTION
The veteran had active service from August 1976 to August
1980 and from October 1989 to September 1993. He served in
the Southwest Asia theater of operations from August 1990 to
April 1991. This case comes before the Board of Veterans'
Appeals (Board) on appeal from a rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana.
In October 1998, the Board remanded this case for further
development. The RO completed that development, whereupon
this case is once again before the Board.
FINDINGS OF FACT
1. The veteran does not suffer from a disability, other than
arthritis, characterized by musculoskeletal complaints.
2. There is no medical evidence linking arthritis to
service.
3. The veteran does not suffer from a current disability
manifested by weakness or loss of muscle control.
4. There veteran does not suffer from an undiagnosed skin
disability.
5. A current diagnosed skin disability is unrelated to
service.
6. The veteran's complaints of headaches have been
associated with a diagnosis.
7. There is no medical evidence linking the veteran's
headaches to service.
8. The veteran does not suffer from a current disability
characterized by memory loss.
9. The veteran does not suffer from a disability
characterized by fatigue.
CONCLUSIONS OF LAW
1. Joint aches due to an undiagnosed illness were not
incurred in or aggravated in service. 38 U.S.C.A. §§ 1110,
1111, 1112, 1117, 1131, 1137, 1153 (West 1991); 38 C.F.R.
§§ 3.303, 3.306, 3.317 (1999).
2. Loss of muscle control due to an undiagnosed illness was
not incurred in or aggravated in service. 38 U.S.C.A.
§§ 1110, 1117, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.317
(1999).
3. A skin rash due to an undiagnosed illness was not
incurred in or aggravated in service. 38 U.S.C.A. §§ 1110,
1117, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.317 (1999).
4. Headaches due to an undiagnosed illness were not incurred
in or aggravated in service. 38 U.S.C.A. §§ 1110, 1117, 1131
(West 1991); 38 C.F.R. §§ 3.303, 3.317 (1999).
5. Memory loss due to an undiagnosed illness was not
incurred in or aggravated in service. 38 U.S.C.A. §§ 1110,
1117, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.317 (1999).
6. Fatigue due to an undiagnosed illness was not incurred in
or aggravated in service. 38 U.S.C.A. §§ 1110, 1117, 1131
(West 1991); 38 C.F.R. §§ 3.303, 3.317 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be granted for a disorder that was
incurred in or aggravated during the veteran's active duty
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A
number of disorders, including arthritis, are presumed to
have been incurred in service if manifested within a year of
separation from service to a degree of 10 percent or more.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309. Service connection may be granted for any disease
diagnosed after discharge, when the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). Moreover, a
disease which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. 38 C.F.R. § 3.310.
A veteran is afforded a presumption of sound condition upon
entry into service, except for any defects noted at the time
of examination for entry into service; that presumption can
be overcome only by clear and unmistakable evidence that a
disability existed prior to service. 38 U.S.C.A. § 1111; see
Doran v. Brown, 6 Vet. App. 283 (1994); Laposky v. Brown, 4
Vet. App. 331 (1993). Further, a preexisting injury or
disease is considered to have been aggravated by service if
there is an increase in disability during service, unless
there is a specific finding that the increase in disability
is due to the natural progress of the disease. 38 U.S.C.A.
§ 1153; 38 C.F.R. § 3.306(a). However, intermittent or
temporary flare-ups during service of a preexisting injury or
disease do not constitute aggravation. Rather, the
underlying condition must have worsened. Hunt v. Derwinski,
1 Vet. App. 292, 297 (1991).
The initial inquiry in reviewing any claim before the Board
is whether the appellant has presented evidence of a well-
grounded claim; that is, one that is plausible or capable of
substantiation. The appellant carries the burden of
submitting evidence "sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1
Vet. App. 78, 81 (1990). If the appellant has not presented
a well-grounded claim, that appeal must fail. While the
claim need not be conclusive, it must be accompanied by
supporting evidence; a mere allegation is not sufficient.
Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In cases which
the determinative issue is one involving medical causation,
competent medical evidence is required to establish a well-
grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).
A well-grounded claim for service connection, moreover,
requires that three elements be satisfied. First, there must
be competent evidence of a current disability, as established
by a medical diagnosis; second, there must be evidence of an
incurrence or aggravation of a disease or injury in service,
as established by lay or medical evidence, as appropriate;
third, there must be competent evidence of a nexus or
relationship between the in-service injury or disease and the
current disorder, as established by medical evidence or a
medical opinion. See generally Epps v. Gober, 126 F.3d 1464
(Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506
(1995).
Alternatively, a claim may be well grounded based upon
application of the rule for chronicity and continuity of
symptomatology, set forth in 38 C.F.R. § 3.303(b). See
Savage v. Gober, 10 Vet. App. 488 (1997). The chronicity
provision applies where there is evidence, regardless of its
date, which shows that a veteran had a chronic condition
either in service or during an applicable presumption period
and that the veteran still has such a condition. That
evidence must be medical, unless is relates to a condition
that may be attested to by lay observation. If the
chronicity provision does not apply, a claim may still be
well grounded "if the condition is observed during service
or any applicable presumption period, continuity of
symptomatology is demonstrated thereafter, and competent
evidence relates the present condition to that
symptomatology." Savage, 10 Vet. App. at 498.
Also, compensation is available to Persian Gulf veterans who
exhibit objective indications of chronic disability resulting
from an illnesses or combination of illnesses manifested by
one or more signs, if the disability becomes manifest to a
degree of 10 percent or more not later than December 31, 2001
and if the disability cannot be attributed to any known
diagnosis. 38 C.F.R. § 3.317(a)(1), (5). "[O]bjective
indications of chronic disability" include both "signs,"
in the medical sense of objective evidence perceptible to an
examining physician, and other, non-medical indicators that
are capable of verification. 38 C.F.R. § 3.317(a)(2). For
purposes of this section disabilities that have existed for
six months or more and disabilities that exhibit intermittent
episodes of improvement and worsening over a six month period
will be considered chronic. 38 C.F.R. § 3.317(a)(3). See
also 38 U.S.C.A. § 1117; VAOGCPREC 8-98.
A well-grounded claim for compensation under 38 U.S.C.A.
§ 1117(a) and 38 C.F.R. § 3.317 for disability due to and
undiagnosed illness generally requires evidence of (1) active
service in Southwest Asia during the Persian Gulf War, (2)
manifestation of one or more signs or symptoms of undiagnosed
illness, such as fatigue, signs or symptoms involving skin,
headache, joint pain, muscle pain, neurologic signs or
symptoms, and neuropsychological signs or symptoms, (3)
objective indications of chronic disability during the
relevant period of service or to a degree of 10 percent or
more within the specified presumptive period, and (4) a nexus
between the chronic disability and the undiagnosed disorder.
See VAOGCPREC 4-99.
As a preliminary matter, the Board finds that the veteran's
claims for service connection of various disorders are "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). That is, the Board finds that the veteran has
presented claims which are not implausible when his
contentions and the evidence of record are viewed in the
light most favorable to his claims. The Board is also
satisfied that all the facts relevant to these claims have
been properly and sufficiently developed.
The Board notes that pursuant to the Board's remand
additional development of the veteran's claims was attempted
by the RO. The RO made repeated attempts to obtain
additional evidence of treatment requested by the Board and
to schedule the veteran for additional VA examinations that
were intended to develop information germane to the veteran's
claims. The veteran failed to respond to the request for
additional information or to report for the scheduled
examinations.
Under the VA's regulations, when a claimant fails to report
for an examination scheduled in connection with an original
compensation claim, absent good cause, the claim shall be
based on the evidence of record. 38 C.F.R. § 3.655(a),(b).
The veteran has not articulated any cause for his failure to
appear for the scheduled evaluations, and the record does not
provide a basis for granting the claims in question. See
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to
assist is not always a one-way street. If a veteran wishes
help, he cannot passively wait for it in those circumstances
where he may or should have information that is essential in
obtaining the putative evidence.").
I. Joint Aches
The veteran contends that he has a disability manifested by
multiple joint aches. During a VA examination in October
1994, he complained of multiple joint pain, mainly in the
hips, elbows, and shoulders. Although the examiner diagnosed
arthralgia of multiple joints, the examiner's report does not
reflect the presence of findings to suggest a conclusion that
the examiner observed perceptible evidence to corroborate the
veteran's complaints of multiple joint pains.
A VA general medical examination performed in March 1997
noted some tenderness in the low back region and included a
diagnosis of multiple joint pain. Upon a more specific VA
joint examination in March 1997, the veteran complained of
joint pain, including pain of the hips, knees, shoulders, and
elbows. The examiner concluded that although the veteran had
chronic joint pain, which he claimed was due to exposure, the
examiner was unable to find any evidence on physical
examination of problems. Thus, although the veteran has
articulated complaints of multiple joint pains, the more
specific examination essentially ruled out that the veteran's
complaints are currently manifested by any signs or other
indicators capable of verification.
Service medical records document some musculoskeletal
complaints at various times. In November 1981, an ankle
sprain was diagnosed. Further treatment records from
December 1989 and January 1990 document complaints associated
with the veteran's right shoulder. Those treatment records
reference possible shoulder strain and myalgia and reflect
instructions in December 1989 to rule out overuse syndrome
versus tendonitis/bursitis. A February 1990 entry references
complaints of left ankle pain of one day after a chair was
dropped on the ankle. However, a June 1991 examination
revealed the upper and lower extremities, the spine, and the
musculoskeletal system in general to be normal. The findings
reported at the time of the examination, the lack of findings
in service suggesting the presence of a chronic disability
associated with the veteran's musculoskeletal complaints when
presented, and the findings of post-service VA examinations
suggest that any disability manifested by complaints of
musculoskeletal pain in service resolved by the time of the
veteran's separation from service and is no longer present.
There is some evidence that the veteran suffers from
arthritis. A November 1995 opinion from a private examiner
whose records of treatment document complaints of knee and
hip pain reflect that the veteran was diagnosed with
osteoarthritis in the left knee and bilateral hips confirmed
by x-ray examination in July 1995. Although a March 1997 VA
x-ray examination revealed normal knees bilaterally, that
examination also revealed mild left hip degenerative joint
disease with an otherwise normal pelvic radiograph.
Although arthritis of at least of one hip has been
established by evidence associated with the claims file,
service connection is not available for arthritis under
38 U.S.C.A. § 1117 because by arthritis is not an undiagnosed
disorder. The Board observes, furthermore, that service
medical records do not reflect a diagnosis of arthritis in
service and post-service treatment records do not reflect a
diagnosis of arthritis within a year of service. There is
also no medical opinion otherwise linking arthritis to
service.
Although the veteran apparently reported during a November
1986 periodic examination that he had been informed by
physicians that he had arthritis of the back, knees, wrist
and knuckles, he is not competent to diagnose a disability,
and a recitation by a physician of a history provided by the
veteran is not competent evidence that might link a
disability to service. See Gahman v. West, 12 Vet. App. 406
(June 4, 1999). In any event, there is no competent medical
evidence after service that the veteran suffers from
arthritis other than arthritis of the knees and hips, there
are no findings of arthritis during service, and the most
recent VA examination suggests that arthritis of the knees is
no longer present, if it was ever present at all. Even
assuming, arguendo, that some form of arthritis was present
at a time prior to entry into active duty, the evidence
associated with the claims file demonstrates that arthritis
did not worsen during service.
The Board previously requested development that might have
aided the veteran's case. However, the veteran has failed to
respond to a request for additional records and has failed to
make himself available for a VA examination which was
requested by the Board. As it stands, the evidence reflects
that the veteran does not suffer from a disability resulting
from an undiagnosed disorder and that any arthritis that is
present is unrelated to service. The Board is constrained to
conclude that the veteran, therefore, does not suffer from a
disability characterized by musculoskeletal complaints that
had its onset in service or that otherwise is related to
service.
II. Loss of Muscle Control
The veteran complains of loss of muscle control. However,
service medical records do not document loss of muscular
control. During a VA examination in October 1994, the
veteran complained of occasional loss of use of his hands.
However, the examination report does not include such a
diagnosis. There was no diagnosis of loss of muscle control.
During a VA examination in March 1997, the veteran also
complained of occasional loss of muscle control, occurring
mostly in the arms. The examiner indicated that he did not
have a firm etiology for the veteran's complaint, but that it
was unlikely to represent any type of seizure activity.
Neither examiner reported neurological abnormality or
weakness. The October 1994 examiner reported that upper and
lower extremities were normal and that the neurological
system was normal. Examination in March 1997 revealed normal
muscle tone and 5/5 strength in both the lower and upper
extremities. The claims file does not document other non-
medical verification of weakness. The preponderance of the
evidence reflects that the veteran's complaints of weakness
are unsubstantiated and that the veteran does not suffer from
a disability characterized by muscle weakness. Inasmuch as
the veteran does not suffer from a current disability
manifested by weakness, service connection for such a
disability is not in order.
III. Skin Rash
The veteran contends that a skin rash is the result of an
undiagnosed illness. Treatment records from September,
October, and November 1992 document complaints of skin rash.
The assessment in September 1992 was that of dermatitis of an
unknown etiology. Subsequent entries from October and
November 1992 reflect that the assessment was that of
scabies.
During a VA examination in October 1994, an examiner
diagnosed a history of a rash of the arms and legs, adding
that there was no rash at the time of the examination.
During a VA examination in February 1997, the veteran
complained of a rash in the past that he indicated began
during service in the Persian Gulf and that thereafter
appeared once or twice a month. The veteran indicated that
the rash consisted of bumps on his extremities that were not
present at the time of examination and that had not been
present since the prior Christmas. The examiner's assessment
was that of essentially a normal examination except for
xerotic dermatitis for which the examiner recommended a
change of soaps. The examiner also described small keratotic
lesions on the finger which the examiner indicated should
either be left alone and observed or removed at the veteran's
discretion. The examiner added that the veteran did not have
"service related dermatitis or rashes."
While dermatitis of unknown etiology was diagnosed in
September 1992, subsequently dated medical evidence
associated with the claims file does not reflect the presence
of an undiagnosed illness. The veteran's complaints of a
rash have not been corroborated by physical examination or
other verifying evidence. Although the most recent VA
examination revealed some skin dryness, the examiner assessed
xerotic dermatitis apparently related to the use of a certain
body soap. Neither this disorder nor the diagnosed keratoses
constitute undiagnosed illnesses.
Evidence associated with the claims file reflects that any
current skin disorder is unrelated to service. Skin
complaints in service ultimately were diagnosed as scabies.
Post-service records do not reflect the presence of scabies,
and the February 1997 examiner's opinion affirmatively
dissociated any current dermatitis from service. Therefore,
service connection is unwarranted for a disability manifested
by a rash or any other skin disorder.
IV. Headaches
The veteran complains of headaches. Service medical records
do not document complaints of headaches, and during a VA
examination in October 1994, the veteran did not articulate
complaints of headaches. During a VA examination in March
1997, the veteran complained of headaches that he indicated
began three to four months after his return from Saudi
Arabia. The examiner's assessment references vascular
headaches of a mixed tension migraine nature. The veteran's
articulated complaints of headaches have been associated with
a diagnosis, and, therefore, service connection under
38 U.S.C.A. § 1117 is unwarranted. There is no medical
evidence linking the diagnosed disorder to service. There is
no medical opinion, for example, suggesting that the
veteran's headaches had their onset in service, and the Board
observes that during an examination in June 1991, the veteran
denied a history of severe headaches. The Board concludes
that service connection is not warranted for a disability
manifested by headaches.
V. Memory Loss
The veteran seeks service connection for memory loss due to
an undiagnosed illness. The service medical records do not
document memory loss. During an examination in October 1994,
diagnoses included a history of short-term memory loss, based
apparently upon a history provided by the veteran. The
examiner's diagnosis, in this respect, includes a reference
to a normal physical examination. Although the veteran
complained of memory loss during an examination in March
1997, an examiner observed that the veteran's memory was 3/3
at 0 and 5 minutes and that the veteran was "a fairly good
historian without difficulty recalling previous events."
The examiner added, however, that there was no way to test
episodic memory loss.
No diagnosis has been attached to the veteran's post-service
complaints of memory loss. However, there apparently has
been no objective corroboration of the veteran's subjective
complaints. Both VA examination reports reflect that those
examinations failed to develop evidence of memory loss.
Treatment records do not document findings suggesting the
presence of memory loss, and the claims file does not contain
other verifiable evidence of memory loss. Therefore, the
Board concludes that the preponderance of the evidence
reflects that there is no objective indication of a chronic
disability characterized by memory loss.
VI. Fatigue
There also is no objective indication of chronic disability
with respect to the veteran's complaints of fatigue. The
October 1994 examination revealed a normal physical
examination with respect to the veteran's complaints of
fatigue. Although the veteran complained of easy fatigue
during an examination in March 1997, conclusions offered in
the report of that examination do not suggest the presence of
findings associated with the veteran's complaints of fatigue
that eluded diagnosis. In this respect, clinical diagnoses
consisted of hypertension, multi joint pain, headache,
characterized as probably secondary to hypertension, and
questionable post-traumatic stress disorder. There was no
diagnosis of or reference by way of conclusions or findings,
however, to chronic fatigue. The Board also notes that there
is nothing in the March 1997 examination report that relates
the veteran's complaints of chronic fatigue to a diagnosed or
undiagnosed illness. As the Board concludes that the veteran
does not suffer from a disability characterized by fatigue,
service connection for such a disability is not warranted.
It is pertinent to again point out that the Board remanded
this case to the RO for the purpose of affording the veteran
medical examinations and to obtain relevant medical evidence
but the veteran has failed to respond. In written argument
dated in October 1999, the veteran's representative
acknowledged that the veteran failed tom report for the
scheduled examinations and has not even responded to the
representatives calls and correspondence. Under these
circumstances, there is no further duty to assist the veteran
at this time.
As the preponderance of the evidence is against the claims,
the benefit of the doubt doctrine is not applicable, and the
service connection claims must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
A claim for service connection for joint aches due to an
undiagnosed illness is denied.
A claim for service connection for loss of muscle control due
to an undiagnosed illness is denied.
A claim for service connection for a skin rash due to an
undiagnosed illness is denied.
A claim for service connection for headaches due to an
undiagnosed illness is denied.
A claim for service connection for memory loss due to an
undiagnosed illness is denied.
A claim for service connection for fatigue due to an
undiagnosed illness is denied.
R. F. WILLIAMS
Member, Board of Veterans' Appeals